145 N.E. 739 | NY | 1924
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *61 The testator, Frank Santrucek, died in June, 1922, aged sixty-four or sixty-five years. By his will, dated April 5, 1922, he left his entire estate (about $9,600 in value) to his wife, whom he had married a few days before, March 30, 1922. A daughter by a first marriage, with whom till then he had made his home, resented the new union. On April 3, 1922, she gave notice to the savings bank where her father's earnings had been deposited to the credit of a joint account that payment must be stopped. She now contests the will which was executed two days later. Another daughter and a son did not join in the contest. All three children are of full age and married.
The proceeding for probate was tried by the surrogate and a jury. The surrogate submitted to the jury two *62 questions: (1) Whether the testator was of sound mind and memory and capable of making a will; and (2) whether the execution of the will was obtained by undue influence. Both questions were answered yes. Upon the single ground of undue influence, probate was denied.
We are not at liberty to reverse for failure of proof the decree which the Appellate Division has unanimously affirmed (Const. art. VI, § 9). We may still look into the evidence, however, to help us to a conclusion whether errors in the charge are harmless or substantial (Hanrahan v. N.Y. Edison Co.,
The contestant submitted a series of requests to charge which the surrogate adopted. Some of them assumed facts as established which were either unproved or at best disputed. Others magnified unduly the persuasive force of the evidence to be exacted of the proponent before the will could be sustained. In some, excerpts from text books and opinions, accurate enough as an expression of the judgment of the authors upon a concrete situation, were put before the jury as if they embodied rules of law. In others, circumstances and events that were innocent or indifferent were rehearsed to the jury as permitting an inference of guilt. Lights and shadows were so adjusted that the picture was unreal.
We think it was error to charge that "in determining the question of undue influence fraud, coercion and duress, the mental strength of the one spouse and the weakness of the other may be considered by the jury as having some direct relation to a subsequent testamentary act on the part of the weaker spouse." Inequality is here assumed as if it were a conceded fact.
We think it was error to charge that "the failure to adequately explain a change of the testator's intentions towards his children after his marriage with the proponent *63 is a fact which may be considered by the jury in reaching a determination." Again there is a false assumption.
We think it was error to charge that "when the character of the persons acting as attesting witnesses is implicated by any circumstances connecting them with the sole beneficiary, their act of witnessing is necessarily somewhat affected, and their bias is then to be taken into account." An inference of interest or bias may be possible. It is certainly not "necessary."
We think it was error to charge: "That the short lapse of time between the marriage and the making of the will, and the short lapse of time between the marriage and the transfer of the bank account, its withdrawal and the change in beneficiary in the life insurance, are facts which the jury may consider in determining whether these acts were part of a scheme to exercise undue influence and the use of fraud, coercion or duress to improperly obtain possession of the estate of the decedent." These facts had no tendency without more to establish undue influence. We cannot find that more was proved. A man does what is natural and reasonable when he makes provision for his wife.
We think it was error to charge (in the words of Jarman's treatise, 1 Jarman on Wills, 29; Rollwagen v. Rollwagen,
We think it was error to charge that if "a single ground for suspicion exist in a probate cause, the proof must be clear in order to establish a will." Such statements may, indeed, be found in the reports. Put before the jury *64
as rules of law, they have a tendency to mislead, since they seem to substitute a requirement of proof beyond suspicion for the requirement of proof by a preponderance of evidence (McKeon v.Van Slyck,
Any one of these errors might perhaps be disregarded if it stood alone. Possibly all might be disregarded in a case where the verdict was well supported by the facts. We cannot hold them negligible upon the record now before us.
The judgment of the Appellate Division and the decree of the Surrogate's Court should be reversed, and a new trial granted, with costs to abide the event.
POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; HISCOCK, Ch. J., concurs in result.
Judgment reversed, etc.
